1. Definitions
Except to the extent that the context otherwise requires:
Agreement means the agreement between the Department and the Submitting Party for provision of the Testing Services formed in accordance with clause 3.
Business Day means any day except a Saturday, Sunday or a public holiday in Western Australia.
Cancellation Period means the period specified in clause 4.2 for the Submitting Party to provide notice cancelling the Testing Services.
Charges means monies payable for the provision of the Testing Services as determined by the Department by applying the rates and charges set out on the website.
Department means the State of Western Australia, acting through the Department of Primary Industries and Regional Development.
Force Majeure Event means any of the following events, acts or causes beyond the reasonable control of the Department:
(a) act of God, lightning, storm, flood, fire, earthquake, or cyclone;
(b) strike, lockout or other labour dispute; or
(c) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, biosecurity emergency, quarantine, pandemic (including the worldwide pandemic declared by the World Health Organisation on 11 March 2020 in respect of COVID-19) or epidemic.
Request means the completed Submission Form submitted by the Submitting Party to the Department’s Diagnostics and Laboratory Services which sets out the Submitting Party’s request for diagnostic and laboratory testing services from the Department in relation to the Testing Material.
Results means any report, finding, result, statement or certification in relation to the Testing Services prepared by the Department’s Diagnostics and Laboratory Services and provided to the Submitting Party.
Submission Form means the submission form made available by the Department on the website.
Submitting Party means the person named in the Request as requesting the Testing Services.
Testing Material means each sample or material supplied by the Submitting Party to the Department for the purposes of providing the Testing Services.
Testing Notification means a notice given by the Department to the Submitting Party in accordance with clause 4.1(a).
Testing Services means the diagnostic and laboratory testing services described in the Request.
2. Interpretation
2.1. Except to the extent that the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) a reference to a person includes a reference to a natural person and a legal person;
(c) headings have been inserted in these terms and conditions for the purpose of guidance only and do not form part of the Agreement;
(d) a reference to any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;
(e) if a word or phrase is defined, its other grammatical forms have corresponding meanings;
(f) no rule of interpretation is to be applied to disadvantage a party on the basis that it was responsible for preparing these terms and conditions;
(g) an agreement, representation or warranty on the part of, or in favour of, two or more persons binds, or is for the benefit of, them jointly and severally;
(h) a reference to dollars or $ is to Australian currency; and
(i) a reference to time is to a time in Perth, Western Australia.
3. Formation of Agreement
3.1. By submitting a Request, the Submitting Party enters into an agreement with the Department on the terms set out in these terms and conditions, the Request and any attachments to the Request.
3.2. If there is any inconsistency between the documents forming part of this Agreement, the order of priority will be (in descending order):
(a) these terms and conditions;
(b) the Request; and
(c) any attachments to the Request.
4. Testing notification and cancellation
4.1. Upon receipt of a Request and the Testing Material, the Department will by notice to the Submitting Party either:
(a) confirm that the Department is prepared to undertake the Testing Services and provide an estimate of the Charges (Testing Notification); or
(b) advise the Submitting Party that the Department is unwilling or unable to undertake the Testing Services.
4.2. If the Department issues a Testing Notification, the Submitting Party may cancel the Testing Services by notice to the Department no later than 2 Business Days after receiving the Testing Notification (Cancellation Period).
4.3. If the Department issues a Testing Notification and the Submitting Party does not provide notice under clause 4.2 within the Cancellation Period, the Department will proceed to use reasonable endeavours to provide the Testing Services to the Submitting Party in a timely manner.
5. Changes to scope
The Department and the Submitting Party may vary the scope of the Testing Services at any time by agreement in writing.
6. Results
6.1. The Department will provide the Submitting Party with an electronic copy of the Results upon completion of the Testing Services.
6.2. The Submitting Party may request that the Department provide additional copies of the Results at the Submitting Party’s expense.
7. Charges
7.1. In consideration for the Department undertaking the Testing Services, the Submitting Party will pay the Department the Charges.
7.2. As a precondition to payment, the Department must issue the Submitting Party with a valid tax invoice for the Charges.
7.3. The Submitting Party must pay the Department the Charges within 30 Business Days of being issued with a tax invoice from the Department.
7.4. Unless expressly stated otherwise, all amounts payable or other considerations provided in respect of supplies made in relation to this Agreement are exclusive of any GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8. Submitting party obligations
The Submitting Party must:
8.1. provide the Department with any information required by the Department to provide the Testing Services; and
8.2. ensure that all information supplied to the Department is accurate and complete, and agrees that the Department is not obliged to check the accuracy or completeness of any information provided by the Submitting Party.
9. Testing material
9.1. The Submitting Party is responsible for the Testing Material, including the sufficiency of its quantity and form, provision of adequate information in respect of any safety or health hazards and any special procedures in connection with the handling, testing, storage, transport, disposal of the Testing Material and all costs and expenses in connection with the delivery of the Testing Materials to the Department.
9.2. If the Department considers that the Testing Material is insufficient in quantity or quality in order to provide the Testing Services, it may request additional or alternate samples of the Testing Material from the Submitting Party before or after issuing the Testing Notification.
9.3. The Submitting Party acknowledges and agrees that:
(a) the Department will not in any way be liable for any damage to the Testing Material;
(b) the Testing Material, once in the possession of the Department, becomes the property of the Department;
(c) the Testing Material may be altered, damaged or destroyed in the course of providing the Testing Services and the Department will not in any way be liable for such alteration, damage or destruction;
(d) the Department is not obliged to return the Testing Material, whether in its original form or otherwise, to the Submitting Party, unless otherwise agreed to be returned by the Department at the cost of the Submitting Party; and
(e) the Department may in its absolute discretion, store, experiment upon, destroy or otherwise deal with the Testing Material.
10. Acknowledgements
The Submitting Party acknowledges that:
10.1. provision of the Testing Services may not always yield accurate or exact results and the Submitting Party relies on the Results at its own risk;
10.2. the testing of Testing Material and any Results may be impacted by factors outside of the control of the Department;
10.3. an estimate of Charges given in a Testing Notification is an estimate only and the total Charges payable may be more or less than this amount; and
10.4. if the Department determines during the testing process that the quantity or quality of the Testing Material is insufficient to provide meaningful results, the Department may in its discretion cease performing the Testing Services and the Submitting Party will remain liable to pay the Charges for any work performed by the Department prior to ceasing to perform those Testing Services.
11. Intellectual property
11.1. All intellectual property rights in any Results are owned by the Department.
11.2. Subject to the payment of the Charges by the Submitting Party in accordance with clause 7, the Department grants the Submitting Party a perpetual, irrevocable, non-exclusive and royalty-free licence to use the Results for the Submitting Party’s own internal purposes.
12. Publicity, disclosure and use
12.1. The Submitting Party must not in any way represent that the Department supports, endorses or certifies the Submitting Party’s products, services, methods or business.
12.2. The Department reserves the right to disclose Results and any other relevant information to the appropriate authorities where the Department is aware that the Results or other relevant information:
(a) indicate the presence of a reportable disease;
(b) should be disclosed under legislation that applies in that jurisdiction; or
(c) should be disclosed to the relevant agency in the public interest.
12.3. The Submitting Party acknowledges and agrees that the Department may be required to disclose or provide Testing Material, Results and other materials received or generated by it under or in connection with these terms and conditions to any court, government body or regulator pursuant to any legal or other compulsory process.
12.4. The Submitting Party must not alter then distribute or publish any Results prepared by the Department.
13. Limitation of liability
To the extent permitted by law:
13.1. the Department excludes all terms, conditions, warranties and guarantees either expressed or implied by law or statute;
13.2. the Department excludes all liability for any indirect or consequential loss or damage, or any loss of profit, business or goodwill;
13.3. the Department's liability to the Submitting Party is limited to, at the Department's option, supplying the Testing Services again or paying the cost of having the Testing Services supplied again;
13.4. the Department is not liable to any third party that is not a Submitting Party and excludes all liability whatsoever to such parties arising out of or in connection with the Testing Services;
13.5. the total liability of the Department, whether in contract, tort (including negligence), under statute or otherwise will not exceed the Charges paid by the Submitting Party to the Department; and
13.6. the Department is not liable for any breach, failure or other act or omission arising under or in connection with this Agreement to the extent that such breach, failure or other act or omission is caused or contributed to by the Submitting Party, its employees, agents or contractors.
14. Release and indemnity
The Submitting Party agrees to release, indemnify and keep indemnified the Department, the Ministers of the State of Western Australia, and any of their officers, employees, servants and agents (collectively the Indemnitees) from and against any and all liability, actions, claims, demands, damages, costs and expenses suffered or incurred by any of the Indemnitees in connection with or arising in any way out of:
14.1. the Testing Services, including without limitation:
(a) any loss or liability suffered or incurred by the Submitting Party or any third party as a result of reliance on the Results;
(b) any failure of the Testing Material to pass any tests;
(c) any import or export restrictions, prohibitions, sanctions or governmental action that might apply to the Submitting Party, its goods or services as a result of the Testing Material passing or failing any tests; or
14.2. any breach by the Submitting Party of the terms of this Agreement.
15. Force majeure
(a) The Department is not liable for any failure to observe its obligations under these terms and conditions where such failure is wholly or substantially due to a Force Majeure Event.
16. Termination
This Agreement will terminate without further notice if:
16.1. the Department gives the Submitting Party notice under clause 4.1(b);
16.2. the Submitting Party gives the Department notice under clause 4.2 but only if that notice is received within the Cancellation Period;
16.3. the Department gives notice to the Submitting Party that it has formed the view that performing or continuing to perform the Testing Services poses an unacceptable safety or health risk; or
16.4. a party breaches a term of this Agreement and does not remedy that breach within 14 days of the other party providing notice requesting the first party to remedy the breach.
17. Effect of termination
17.1. On termination of this Agreement, the Submitting Party must pay all Charges for work undertaken by the Department as at the date of termination in accordance with clauses 7.2 - 7.4.
17.2. For the avoidance of doubt clauses 9.3, 10, 11, 12, 13, 14, 15, 17, 19 and 23 survive the termination of this Agreement.
18. Notices
18.1. Each notice or other communication given by a party under this Agreement must be:
(a) in writing; and
(b) delivered by hand, or sent by email or post to:
in the case of a notice to the Department; DDLS, Department of Primary Industries and Regional Development, 3 Baron-Hay Court, South Perth 6151, or email DDLS (ddls@dpird.wa.gov.au); or
(i) in the case of a notice to the Submitting Party, the address of the Submitting Party nominated in the Request or if there is no such address notified, to the last known address or email address of the person who submitted the Request.
18.2. Each notice or other communication given by a party under this Agreement is taken to be received:
(a) if delivered by hand, on the date of delivery;
(b) in the case of post, on the fourth Business Day after posting; and
(c) in the case of email, on the date on which it is deemed to have been received under the Electronic Transactions Act 2011 (WA).
18.3. A party may change its notice details by written notice to the other party.
19. Dispute resolution
The parties agree that if any dispute arises between them they will make a genuine effort to resolve it without resorting to litigation. Nothing in this clause will prevent either party from seeking urgent interlocutory relief from any courts.
20. Waiver
No waiver by either party of any provisions of this Agreement will amount to a continuing waiver of any other provision of this Agreement unless made in writing and signed by the party against whom the waiver would have been enforced.
21. Amending terms
The Department may amend these terms and conditions at any time and notification will be made by posting the amended terms and conditions on its website.
22. Severability
If any part of this Agreement is held to be invalid or unenforceable in any way, the remaining provisions will not be affected.
23. Governing law
This Agreement will be governed by the laws of Western Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in that state.
24. Entire Agreement
This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, representations, negotiations and correspondence.